Attorneys for Tony Stewart and the parents of Kevin Ward Jr. will be in U.S. District Court in Utica, New York, for a summary judgment hearing Friday as part of the Ward family's wrongful death lawsuit against Stewart. During an Empire Super Sprints race Aug. 9, 2014, at Canandaigua (N.Y.) Motorsports Park, Kevin Ward Jr. got out of his car after a crash and approached Stewart's car, which struck and killed the 20-year-old driver. Stewart was not criminally charged.
What is the purpose of the hearing?
The Ward family is suing Stewart on four claims: wrongful death, terror pain and suffering prior to death, intentional/reckless conduct and gross negligence. Stewart has asked for the judge to rule in his favor on all counts except for intentional/reckless conduct, which would have to be determined by a jury. The judge, David Hurd, will take into account facts that he views are not in dispute and will decide if the law favors Stewart.
What is Stewart's main argument?
Stewart claims that waivers signed by Kevin Ward Jr. as a driver, and Ward's father, as his car owner, with Empire Super Sprints and the race track prohibit the Wards from suing for wrongful death and gross negligence because those waivers state they release other competitors from liability. He also argues that a race-car driver assumes an inherent risk when competing and therefore he cannot be held liable.
Why wouldn't waivers be applicable?
The Ward family questions whether Stewart actually signed a waiver, argues that Stewart never received an ESS membership card and the track waiver Stewart signed was different than the one the Wards signed. The Wards also argue that the waivers are not applicable to a gross negligence claim.
What is "terror pain" and why is that important?
In New York, families of victims cannot get damages for their pain and suffering, only for the victims' pain and suffering. Some of the biggest financial awards come from their loved one suffering from pre-impact terror -- think of looking up and seeing something falling on you.
Did Ward suffer such fear of pending death?
Stewart argues any experienced driver who would walk onto a hot race track and approach race cars is showing no fear because the driver knows what could happen. Stewart's toxicology expert reported that Ward had enough marijuana in his system to be impaired, which would mean more impulsive behavior and less inhibition. Because Ward was wearing a helmet, Stewart argues, there is no way to prove he had any terror. The Ward family's crash reconstruction experts determined that Ward's raising his arms just prior to contact with Stewart's car indicates he was making a desperate move to scramble away and therefore had that terror.
Did Ward suffer physical pain prior to death?
Stewart says no, using the testimony of first responders who said he had no pulse and was unresponsive. The death certificate says the approximate interval between onset of injury and death was "seconds." The Ward family argues that because he jumped and was hit first in the leg by the wheel of Stewart's car (suffering a broken leg) that he suffered that pain prior to being hit again (Ward suffered a lacerated aorta and transected spinal cord). The Ward family also argues that because Stewart claims that the family can't prove pre-impact terror because Ward's helmet obscured any facial expressions, that the same argument means that first responders couldn't determine his level of consciousness when they first got to him.
When will the judge make a decision?
The judge could make a decision from the bench at the end of the hearing. More likely, he will make it in the weeks following. He has had plenty of time to read the motions -- they were filed in March and April as the hearing was originally scheduled for April 28 but was postponed as mediation and settlement talks continued. It was then set for June 23 but canceled by Hurd, who initially decided to rule solely on the written arguments. The Sept. 8 hearing was postponed because the Wards' lawyers are from Houston and were impacted by Hurricane Harvey.
Can the decision be appealed?
Not before a trial. Even if Stewart wins on all his arguments, the case will continue toward trial because only a jury can determine if Stewart acted recklessly. Decisions in the case cannot be appealed until all the issues are adjudicated in U.S. district court.
What's next and when is the trial?
Good question as no date has been set for trial. Any motions challenging evidence and expert testimony are due next Tuesday. Once there is a ruling on summary judgment, it would give both sides a better idea of just how much in damages could be at stake in trial and therefore give more incentive toward settling the case. Stewart previously dropped an appeal to a court ruling that he wasn't covered by his insurance policy, so he possibly is not covered by any insurance, which could impact his decision on whether to settle.